tdiu BVA Appeal decision - TDIU warranted but not ordered

[armyrob]

Today I received my BVA decision in the BBE. I have been working my own claim since 2006 -- yep, almost 10 years. I filed for IU in 2008, even though my ratings were in the VA hamster wheel. The RO has continued to grant and increase in small doses -- essentially obfuscating the effective date. I continued to appeal those decisions. Finally, the my case came before the BVA, and the BVA ordered the effective dates to 2006 in the "order" section. One other issue was remanded back to AMC/RO for further development.

HOWEVER, on the issue of TDIU -- under the "conclusions of law" section it states; "Resolving doubt in the favor of the veteran, the criteria for TDIU has been met". In another section on specific issues: TDIU (after five pages of findings of fact and case law), the final statement says "Resolving doubt in the favor of the veteran, TDIU is warranted."

However, the TDIU is not mentioned in the "ORDER" section, nor is it mentioned in the "REMAND" section. From what I have seen, anything that is sent back to the AMC/RO that is not either in the remand or order sections are flat out denied by the RO. Anytime the BVA implies anything, the RO assumes they have free reign to just ignore or deny.

I am honestly unsure how to proceed since this is neither a grant, remand, or denial.. In order for it to be a grant it has to be noted in the "order" section of the BVA decision. One cannot appeal a remand because it is not a final decision, and this is not a remand anyway.

With the appeal clock ticking away (roughly 90 days left), I figured I would wait and see if the RO would issue a decision, but now I am uncertain that would happen before the appeal period ends. 

Would anyone have an idea how to address this? Would sending a letter to the board with a motion to reconsider (i.e. make a decision either way) be the wise thing to do?  Very confused on this one.

Edit: my apologies if I posted in the wrong category (appeals, etc). 

 

Edited January 4, 2016 by armyrob

[Vync]

Would you be able to post the text of the BVA decision (omitting any personally identifying info)?

33 minutes ago, armyrob said:

HOWEVER, on the issue of TDIU -- under the "conclusions of law" section it states; "Resolving doubt in the favor of the veteran, the criteria for TDIU has been met". In another section on specific issues: TDIU (after five pages of findings of fact and case law), the final statement says "Resolving doubt in the favor of the veteran, TDIU is warranted."

However, the TDIU is not mentioned in the "ORDER" section, nor is it mentioned in the "REMAND" section. From what I have seen, anything that is sent back to the AMC/RO that is not either in the remand or order sections are flat out denied by the RO. Anytime the BVA implies anything, the RO assumes they have free reign to just ignore or deny.

How long ago was the BVA decision and when did you receive it?

If you have not received an award letter or SOC from the AMC/RO, then your NOD/appeal clock should not have started yet. I say "should not" because sometimes veterans may have moved recently and it can get lost in the mail (the VA is not responsible for this, even though they should be).

When the AMC/RO reviews the BVA decision, they are supposed to read "conclusions of law", "order", and "remand" sections. Based on the text you quoted, it should be enough for the AMC/RO to grant TDIU, in my opinion.

[armyrob]

The first image is page 8 -- is under Conclusions of Law item #15 - TDIU.

The second image is page 42 -- is under Reasons and Basis for Findings and Conclusions.

Then there is the order section which essentially grants an earlier effective date on a few issues. But does not mention TDIU. Then there is the remand section which has one item for remand, again, TDIU is not mentioned.

I realize that BVA cases do not construe a precedent for other cases, because technically they are not a court -- only CAVC cases can be cited for precedent.. But after reviewing quite a few other BVA decisions that deal with TDIU they are always decided and cited in either the Order or Remand sections (or denied). I have yet to come across one that is worded in the conclusions of law section, but then absent in the order section. 

I had previously assumed the RO would issue an SOC, so at least I would know where I stand. But after reading others' experiences it seems that maybe the RO will not issue a SOC until after the 120 day appeal period...(?)

The BVA decision is dated Nov 25, 2015, and I received the BBE around Dec 2, 2015. I have not heard anything from the RO or AMC as of yet.

 

 

Edited January 4, 2016 by armyrob

[Vync]

Both of those statements look solid to me. In this case, the BVA found in your favor. They listed the specific precedents in their statements.

Was TDIU addressed at all in the BBE?

Does the BBE mention dependent educational benefits or CHAMPVA?

Did they happen to increase your compensation payments to 100% (which would be around $2900+/month)?

Check ebenefits and look at the letter generator and the AB8. It anything is in the mail, you should be able to find out any changes before receiving them in the mail by looking here.

I would recommend you check on those items first, before filing an NOD.

 

[armyrob]

Thanks for the reply Vync. The BBE I received was from the BVA (roughly 10 pages dedicated to findings of fact revolving around TDIU), and the final pages which I included above -- I haven't received anything from the RO/AMC yet. 

I checked the AB8 and nothing has changed - yet. 

I am guessing I should wait until I have about 30 days left on the appeal to give the RO / AMC time to either issue an SOC (denial) or award letter (grant). In other words, give them time to work the course. It's been almost 10 years, at this point a few extra months is nothing. If I haven't heard anything by then, I will ask for either an MFR, or at least a clarification from the BVA. 

It's my understanding that I can only do an MFR if it is a denial, so I'm not exactly sure what I am going to ask from them. If it was a remand, I would just let it work it's course... But seeing how it is neither of the above I am left with a big question mark as to what route to go on. 

I will update if I hear anything so if others are out there in a similar boat they will have something to go off of.

 

 

[Vync]

Hey Armyrob,
If your claim is at the AMC, it might be worth it to just call them directly to see what is up:

http://www.bva.va.gov/OMBUDSMAN_CustomerService.asp

Our mailing address is:

                    Board of Veterans’ Appeals

                    810 Vermont Avenue, North West 

                   Washington, DC  20420  

For your convenience the Board of Veterans' Appeals has a FAX line. FAX: 1 202 343 1889 

We may be reached by our phone number 1-800-923-8387 Monday-Friday 9:00am-4:30pm (Eastern time zone). 

 

I went to the BVA once almost 20 years ago. I received a letter from them which was basically the BBE. it was about a month or two before I received anything from my RO. Part of my RO letter was a re-hash of the BVA and the rest was telling me they needed to schedule C&P exams to rate me. Because you received approval for TDIU, I don't anticipate they will send you for a C&P exam.

If it is at the RO, call Peggy at 1-800-827-1000 and see if they can tell you any new news.

Either way, these are likely better options than waiting in limbo. If you can't get in to talk with them today, try calling in the morning around the time they open. It might take multiple tries. I wish you the best of luck!